Table of contents:
P.28. Evidence inferred from an utterance, a document or a deed.
P.28.1. Discriminatory remark made by the perpetrator.
P.28.2. Evidence of taking a victim to a place to be raped by other persons.
P.28.3. Evidence of searching for a victim.
P.28.4. Evidence of the nature of questions asked during interrogation.
P.28.5. Evidence of the nature of the weapon or instrument that the perpetrator selected.
Element:
P.28. Evidence inferred from an utterance, a document or a deed.
P.28.1. Discriminatory remark made by the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 654-656:
"654. The accused acted intentionally and with the aim of discriminating between the members of his ethnic group and the Muslims, in particular its women and girls . The treatment reserved by Dragoljub Kunarac for his victims was motivated by their being Muslims, as is evidenced by the occasions when the accused told women , that they would give birth to Serb babies, or that they should "enjoy being fucked by a Serb". The law does not require that the purpose of discrimination be the only purpose pursued by the offender; it is enough that it forms a substantial part of his mens rea. Such was the case with the accused Kunarac."
655. The acts of the accused caused his victims severe mental and physical pain and suffering. Rape is one of the worst sufferings a human being can inflict upon another. This was abundantly clear to the accused Dragoljub Kunarac, as he stated during his testimony concerning the rape of D.B., when he admitted the fact that he had done something terrible, even though he maintained that it had happened with the consent of D.B.
656. By raping D.B. himself and bringing her and FWS-75 to Ulica Osmana Dikica no.16, the latter at least twice, to be raped by other men, the accused Dragoljub Kunarac thus committed the crimes of torture and rape as a principal perpetrator, and he aided and abetted the other soldiers in their role as principal perpetrators by bringing the two women to Ulica Osmana Dikica no.6."
[B. Evidentiary comment:]
P.28.2. Evidence of taking a victim to a place to be raped by other persons.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 670:
"670. The Trial Chamber is satisfied that, on 2 August 1992, Dragoljub Kunarac went to Partizan Sports Hall where he took out FWS-75, FWS-87, FWS-50 and D.B. and drove them to the house in Ulica Osmana Dikica no?6, where some women who had been taken out of the Kalinovik school had already arrived. The Trial Chamber is also satisfied that Kunarac took these women to this house in the knowledge that they would be raped by soldiers during the night. The Trial Chamber finds that Kunarac took FWS -87 to one of the rooms of the house and forced her to have sexual intercourse in the knowledge that she did not consent. The Trial Chamber also finds that, on that occasion, FWS-75 and FWS-50 were repeatedly raped by other soldiers while Kunarac raped FWS-87. The Trial Chamber further finds that FWS-87 was also raped by other soldiers that same night. The fact that Kunarac took the girls to the house and left them to his men in the knowledge that they would rape them constituted an act of assistance which had a substantial effect on the acts of torture and rape later committed by his men. He therefore aided and abetted in that torture and rape."
[B. Evidentiary comment:]
P.28.3. Evidence of searching for a victim.
P.28.4. Evidence of the nature of questions asked during interrogation.
P.28.5. Evidence of the nature of the weapon or instrument that the perpetrator selected.
A. Legal source/authority and evidence:
Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 486, 549:
"486. The Chamber found, in relation to paragraph 3.18 of the Indictment, that on 13 April 1994, the Accused, in the presence of Bourgmestre Bisengimana, intentionally inflicted serious injuries on Victim C, Rusanganwa, during questioning. The Accused asked Rusanganwa when the Inkotanyi were going to arrive, and the victim responded that he did not know. The Accused then inflicted injuries upon Rusanganwa with a machete, resulting in his death. On this basis, the Chamber finds that the physical and mental pain and suffering were severe. The Chamber also finds that the Accused acted with the aim of obtaining information from the victim. The intentional nature of the Accused’s conduct is demonstrated by his search for Rusanganwa in the crowd and the nature of his question concerning the RPF advance.
549. During the Musha church massacre, the Accused and Bisengimana, the bourgmestre of Gikoro, specifically sought out Rusanganwa and questioned him about the RPF advance. When Rusanganwa did not provide any information, the Accused repeatedly struck him with a machete. The Chamber finds that by these acts, the Accused tortured Rusanganwa by inflicting serious physical pain with the aim of obtaining information about the RPF advance. The intentional nature of the Accused’s conduct is demonstrated by his seeking out Rusanganwa for questioning and using the machete for inflicting serious injury shortly after Rusanganwa’s negative response to the question."
[B. Evidentiary comment:]
P.29. Evidence inferred from a circumstance.
P.29.1. Evidence of a benefit expected to be obtained by causing severe physical or mental pain or suffering (e.g. prevention of resistance or fleeing; obtaining information or confession; punishing; etc.).
P.29.2. Evidence of position as a commander or other position of authority and influence to cause severe physical or mental pain or suffering for the purpose of obtaining a benefit (e.g. prevention of resistance or fleeing; obtaining information or confession; punishing; etc.).
A. Legal source/authority and evidence:
Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 184:
"184. Dragan Nikolic used his position of authority to intimidate the detainees and prevent them from resisting. The Accused’s abuse of his superior position in the camp in principle aggravates his crimes. The detainees lived and died by the hand and at the whim or will of Dragan Nikolic. […]"
[B. Evidentiary comment:]
